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A B.C. man is more than $3,000 out of pocket after an online booking company refused to issue him a refund for a hotel room because he sent his request to cancel it to an email account that nobody checked.

In a Feb. 2 Civil Resolution Tribunal decision, David McEwen argued it wasn't this fault that Hotels.com did not monitor its emails and that he cancelled his reservation within the cancellation period and was therefore owed $3,146.

However, the Tribunal sided with the online booking company and said McEwen did not follow either of the two methods to obtain a refund which was outlined in the terms and conditions.

With thousands of Canadians cancelling vacations due to the pandemic, the case highlights that not following a company’s rules very carefully could be a costly move.

According to the decision, in December 2019 McEwen booked two rooms at a hotel in Jamaica starting on Mar. 15, 2020.

With news of the emerging pandemic, three days before his planned stay and still within the cancellation period, he called Hotels.com to cancel his trip.

The decision says McEwen could not get through on the phone so he emailed the booking company requesting to cancel his hotel and issue a refund.

He never got a reply but when he followed up later the company refused to give him a refund saying he'd failed to cancel the rooms either by phone or by going through its online portal on its website as per its terms and conditions.

McEwen argued that he is not bound by the terms and conditions because Hotels.com did not provide them until after he made the reservation.

The Tribunal said that while the general legal principle is that individuals are not bound by contractual terms that they did not agree to, it is not that cut and dry.

"Just because a website operator has terms and conditions on their website does not necessarily mean that they are part of a contract with a visitor to the website," the decision reads. "However, the visitor may be bound by the terms and conditions if the website operator took reasonable steps to bring them to the visitor’s attention before the parties enter into a contract."

The Tribunal found that Hotels.com had its terms and conditions "prominently displayed" on its final booking page.

"I find that Hotels.com reasonably brought the terms and conditions to Mr. McEwen’s attention before he entered into a contract. At that point, he had not finalized his booking. Mr. McEwen did not read the terms and conditions, but I find he was still bound by them," the Tribunal ruled.

The Tribunal does not say whether it expected McEwen to stay up all night trying to get through to the company by phone, but describes his evidence regarding the calls as “vague.”

“He does not say how many attempts he made or how long he waited on hold before giving up,” the decision says. “I note that he sent the cancellation email around 10:00 p.m. on Mar. 12, 2020, when he had until 2:00 p.m. the next day to cancel. So, I find that Mr. McEwen has not proven that he was unable to cancel by phone before the deadline.”

The Tribunal says that even if Hotels.com’s phone system was so overwhelmed that he could not get through, McEwen still should have cancelled through its website which was “prominently displayed” in the original confirmation email.

Ultimately, the Tribunal dismissed McEwen’s claim.

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